Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What are some forms of disupte resolution
- Alternative Dispute Resolution
- Arbitration
- Independent expert
- Mediation
- PACT
How can you avoid conflicts?
- clear drafting of leases or associated documents
- adopting proactive conflict avoidance risk analysis
- manage all party expectations and understand objectives
- careful negotiations
- good record keeping
What are dispute resolutions a form of?
Conflict Management
What is the basic form of dispute resolution?
Negotiation
psrties egotiate an outcome
Which resolution process is the most intense?
Litigation
* Formal legal provess which uses the legal system to resolve a dispute
What are the advantages of Alternative Dispute Resolution (ADR)
- Speed - quicker than court proceedings
- Informality - outside a court
- Cost - less money on professional fees
- Greater room for negotiation
- Quality - outcome is made by a surveyor not judge
- Confidentiality
How do you determine which form of dispute resolution to adopt?
Many recent leases will have a clause which specifies how disputes are dealt with.
What statute does Arbitration refer to?
The Arbitration Act 1996
How does arbitration work?
- An award is produced to bind the parties
- An arbitratior has specialist knowlegde - if RICS appointed then highly trained
- Proceedings are written representations, arbitratior can order a hearing
- Arbitrator can award costs
- Arbitrators cannot be sued for negligence
What are the 3 grounds for appeal in Arbitration?
- Jurisdiction
- Point of Law
- Serious Irregularity
What are the benefits of Arbitration?
- Fast
- Cost effective
- Confidential
When is Arbitration commonly used?
Commercial property or rurual property rent reviews
Who can appoint an Independent Expert?
The agreement of the parties (possibly recorded in the contract/lease)
What does an Independent Expert do?
They have a duty to make their own investigations and use their knowledge and experience to make a decision
- they often invite written represnetations from the parties
Benefits to Independent Expert
- cost effective
- fast
- confidential
When is an Independent Expert often used
comemrcial property rent reviews or service charge disputes
What does PACT stand for?
Professional Arbitration on Court Terms
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What is PACT specific to?
business tenancy renewals under the LTA 54
WHat are some benefits to PACT?
- Can be an Arbitrator or Independent Expert
- Is someone who is proficient in the topic - i.e. joint between law society and RICS so can have a surveyor look at values and lawyer look at points of law
- greater control and flexibility
- Cheaper
What are some disadvantages to PACT?
- must have an agreement of both parties
- can be costly and time consuming
What are the 2 types of PACT application?
- Pre-issue PACT where you havent applied to court yet - have to make it clear that you need to agree to a written extension of the s.25 or s.26 notice or right to renewal will be lost for the tenant. Need a Written Agreement to enter into PACT in this case.
- Post-Issue Pact - You need a consent order from the court in this case to agree to stay proceedings until the resolution of PACT
What is the role of a neutral mediator?
to facilitate discussions between the two parties to explore if a solution can be found
Can a mediator make a decision?
No
A mediator has no decision-making authority and cannot impose a resolution upon the two parties
What the the oldest and largest provider of ADR?
RICS Dispute Resolution Service
What are some areas the RICS Dispute Resolution Service covers?
- Arbitration
- Independent Expert determination
- PACT
- Dilapidations Dispute Resolution Scheme
- Ground Rent assessment
- ADR for compulsory purchase disputes
What role does a surveyor adopt in a dispute at tribunal?
Expert Witness or Advocate
Why did the RICS issue a Practice Alert on Expert Witnesses in Feb 2024?
In light of increasedc concern about the quality of expert witness functions being performed by RICS members. Immediate action is required as it is evident some members are failing to comply with mandatory standards.
Whos duty is an expert witness to?
The tribunal, not the party who appointed the expert witness
When can a surveyor represent their client in the role of an advocate?
Certain tribunals, such as rent reveiw disputes in front of an arbitrator or an independent expert (common in scotland)
